Professor Ruth ColkerHeck Faust Memorial Chair in Constitutional Law

Michael E. Moritz College of Law

Is Separate Inherently Unequal?

Constitution Day TalkOhio University

September 18, 2007

Theory vs. Practice

Separate is Inherently Unequal

• From Plessy v. Ferguson to Brown v. Board of Education

• Statement arose after frustration with one step at a time approach

• But it has been no panacea– Justice Roberts recently used it in

Seattle School District case to dismantle race-conscious admissions plan

Disability Constitutional Protection

• Weaker than in Race Context– But Court has recognized right of

individuals in group homes to live in neighborhoods

– Has recognized rights of both mentally retarded and those with severe emotional illness not to be subject to death penalty

Role of Statutes

• Statutes have filled the gap left by Constitutional protections

• Today, courts might find many of those rights guaranteed by Constitution if statutes were repealed.– But that is unlikely

• Statutes developed around backdrop of race constitutional protections

Law of Disability Discrimination

• Borrowed integration presumption from race discrimination– Education– Voting– The Internet

Integration Presumption

Rethinking Integration Presumption

• IDEA measures success on the basis of presence in the regular classroom rather than on the basis of performance

Continuum of Services Approach

• Make sure that school districts offer instruction in “regular classes, special classes, home instruction and instruction in hospitals and institutions”

• Then, help select the appropriate choice from this list.

Help America Vote Act

• Goal of public, accessible polling places

New Developments

• Why not bring voting to the voter in nursing homes and other places?

• Absentee and early voting– Essential that it be fully accessible– Accessibility has to include the

process of requesting the early ballot itself

Similar Problem: The Internet

• Is it a “place” of public accommodation?

Home v. Public Sphere

• Should it matter where we shop?

Your comments?